Waldvogel v. Browning-Ferris Indus.

LARRY J. WALDVOGEL, Employee/Appellant, v. BROWNING-FERRIS INDUS. and CNA-RSKCO., Employer-Insurer, and NORAN NEUROLOGICAL and NEUROSURGICAL ASSOCS., Intervenors, and SPECIAL COMPENSATION FUND.

EVIDENCE - BURDEN OF PROOF. Regardless of whether an employee=s injury occurred before or after the 1981 statutory codification of the employee=s burden of proof at Minn. Stat. ' 176.021, subd. 1a, or before or after the legislature=s 1983 declaration that workers= compensation laws are no longer remedial and warranting of liberal construction, the burden of proving that his injury is causally related to his employment has always rested on the claimant employee.

APPEALS - STANDARD OF REVIEW; CAUSATION - SUBSTANTIAL EVIDENCE. The factual issue before the WCCA is not whether there is substantial evidence in the record to support the appellant=s claim contrary to a decision of the compensation judge but whether there is substantial evidence supporting the decision of the judge. Where it was supported by expert medical opinion and other evidence of record, the compensation judge=s conclusion that the employee=s 1980 work injury related only to the employee=s lumbar spine and not to his 2003 epidural lipomatosis-related thoracic problems and consequent permanent total disability was not clearly erroneous and unsupported by substantial evidence.

Attorneys: Mark G. Pryor, Brown & Carlson, Minneapolis, MN, for the Appellant. Roderick C. Cosgriff and Tracy M. Borash, Heacox Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.

The employee appeals from the compensation judge=s assignment of the burden of proof and from his determination that the employee=s work injury of August 20, 1980, was not a substantial contributing factor in the employee=s permanent total disability. We affirm.

Larry J. Waldvogel sustained an admitted injury to his low back on August 20, 1980, while working for Browning-Ferris Industries, Inc. [the employer]. On that date, Mr. Waldvogel [the employee] was attempting to move a large compactor container when the container slid off a hoist and caused the employee to fall to the floor onto his buttocks. The employee was twenty-eight years old at the time and was earning a weekly wage of $350.00.

Following the injury, the employee sought treatment at the Normandale Chiropractic Health Center with Dr. Bonny Hulkonen. The employee complained of left side low back pain, and Dr. Hulkonen diagnosed acute lumbosacral strain associated with multiple lumbar subluxations and L5 radiculalgia. On September 30, 1980, Dr. Hulkonen reported to the employer that the employee=s condition had abruptly worsened, and she recommended that the employee seek medical attention for his low back injury.

The employee was admitted to Fairview Southdale Hospital on September 30, 1980, and came under the care of orthopedic surgeon Dr. A. Bruce Sundberg. At the time, the employee was complaining of acute low back pain and left leg pain. Dr. Sundberg diagnosed acute low back syndrome and a possible L4-5 herniated nucleus pulposus. The employee was treated conservatively and was discharged on October 5, 1980, classified as improved. He returned to his usual job about three weeks later.

The employee continued to have low back problems after returning to work, but he did not seek further medical attention until returning to see Dr. Sundberg on December 14, 1982. On that date, the employee reported that his low back had gradually worsened over the past year. On examination, Dr. Sundberg noted definite tightness of the lumbar fascia and tenderness at the lumbosacral junction and in the left sciatic notch. The doctor concluded that the employee continued to suffer from residuals of his low back injury and ordered a CT scan. The CT scan, performed on December 19, 1982, showed no disc herniation, but it did show a spina bifida occulta at L5-S1.

On January 5, 1983, the employee was examined by neurologist Dr. Roger Farber. On examination, Dr. Farber noted that the employee=s ankle jerks revealed sustained clonus and that his toe signs were markedly extensor. The employee told the doctor that, over the last year, when he put his foot in a certain position, particularly when driving, he would experience what he called Asilly movements.@ Dr. Farber concluded that the employee was experiencing a Aclear upper motor neuron problem,@ and he ordered a series of x-rays and a thoracic CT scan. The CT scan, performed on January 6, 1983, revealed a fracture through the body of T8 and the spinal cord to be eccentrically placed. The reviewing doctor offered a differential diagnosis of Aepidural hematoma or other fluid collection causing mass effect versus adhesions.@

The employee was seen by neurosurgeon Dr. Erich Wisiol on January 12, 1983. The employee reported to Dr. Wisiol that, over the last year or so, he had experienced intermittent, uncontrollable jerking of his feet, particularly when driving a car and using a clutch. Dr. Wisiol reviewed the employee=s thoracic CT scan and agreed that it showed a possible cystic lesion compressing the spinal cord. The employee then underwent a myelogram, which did not reveal any abnormality at the level of the abnormality noted on the CT scan. Dr. Wisiol obtained a repeat CT scan and concluded that the hypodense area seen at the level of the fracture probably represented some fat or increased volume in the neural canal secondary to the employee=s scoliosis, rather than a surgical lesion. Dr. Wisiol opined that the exact cause of the employee=s upper motor neural lesion was indeterminate but might be related to his scoliosis, with some mild irritation of the cord, or to a totally unknown disease process. With regard to the employee=s low back and leg complaints, Dr. Wisiol diagnosed a probable lumbosacral strain syndrome, and he recommended conservative measures.

In a letter to the workers= compensation insurer on July 11, 2003, Dr. Farber reported that the employee remained stable but still had the clonus in the right ankle and some pain in the T8-T9 distribution. He indicated that, in his opinion, the employee was suffering from a post-traumatic subarachnoid cyst causally related to the employee=s work injury.

The employee continued to experience ongoing problems with spasticity in his legs, and, on October 3, 1983, he was referred by Dr. Farber to neurosurgeon Dr. Donald Erickson at the University of Minnesota. Four days later, on October 7, 1983, Dr. Erickson performed a T8 laminectomy with exploration of the spinal canal and the spinal cord. Operative findings included an atrophic cord at approximately T8-T9, with no evidence of extradural compression and no evidence of syrinx or cyst.

In a follow-up report to Dr. Farber on October 17, 1983, Dr. Erickson noted that, during the surgery, he had found what appeared to be a large amount of epidural fat. He stated that the spinal cord seemed softened at that level, although it was not enlarged. He noted also that he could not identify an arachnoid cyst at the time of surgery but that cysts are elusive and a cyst could have self-destructed upon opening the dura.

The employee initially improved following his surgery but then experienced a recurrence of his symptoms, and neurosurgeon Dr. Mahmoud Nagib performed a thoracic laminectomy with cord decompression on January 26, 1984. In a letter to Dr. Farber on May 9, 1984, Dr. Nagib reported that, postoperatively, the employee had gradually improved. He further stated that the employee had gone back to work and was able to perform his daily activities without a great deal of problem. The employee subsequently continued working for the employer in various positions, eventually becoming a project manager.

On May 31, 1985, Dr. Farber reported to the employee=s attorney that the employee had sustained a 50% permanent partial disability of the spine and a 30% permanent partial disability of his legs related to his work injury. Dr. Farber explained that, in his opinion, the employee had a spastic paraparesis secondary to a thoracic spinal cord compression due to unusual fatty overgrowth, for which the employee had decompensated as a result of his work injury.

At the request of the employer and insurer, the employee was seen on May 12, 1986, by Dr. Terrance Capistrant. After obtaining a history from the employee, reviewing the available medical records, and performing a physical examination, Dr. Capistrant reported that he could not relate the employee=s thoracic cord pathology to the strain-type injury that the employee had sustained in August 1980. According to Dr. Capistrant, if the wedge fractures of T8 and T9 seen on the employee=s scans were due to the employee=s work injury, the employee would have developed acute and rather immediate symptoms at the time of injury, followed by gradual improvement, which was not, as Dr. Capistrant saw it, the course followed by the employee. He further concluded that the employee=s work injury was in the nature of a lumbosacral strain, which was unrelated to the employee=s subsequent neurologic symptoms from the spinal cord abnormality.^[1]

The employee went nearly ten years without further treatment before returning to the Noran Neurological Clinic on February 28, 1996. On that date, when seen by Dr. Gerald Morley, the employee reported that he had done relatively well after his second surgery until approximately one year before, when he again began developing increasing symptoms. Based upon his examination, Dr. Morley concluded that it was likely that the employee=s cyst had recurred and was compressing his spinal cord.

On February 29, 1996, the employee was seen in consultation by Dr. Nagib. Dr. Nagib noted that the employee=s recent MRI scan appeared to demonstrate a possible atrophic thoracic spinal cord. He stated that he did not have an etiology for that finding, noting that A[t]here is no significant history for trauma, neoplasm, infection nor inflammation. The only information we have is the previous epidural lipomatosis diagnosis.@ On March 8, 1996, after reviewing another MRI scan, Dr. Nagib advised the employee that he had a very atrophic spinal cord but that further surgery would probably be of no benefit.

On May 30, 1996, the employee was examined at the request of the employer and insurer by Dr. Gary Wyard, who diagnosed previous decompressive laminectomies at T8 and spinal cord compression with neurologic deficits in the lower extremities. Dr. Wyard attributed the employee=s spinal cord compression to a preexisting congenital abnormality and to the subsequent surgical intervention. He did not feel that the employee=s symptoms were related to his injury of August 20, 1980. In Dr. Wyard=s opinion, the employee=s primary original problem after the work injury was a low back injury, not a mid-thoracic injury.

The employee continued to treat with Dr. Morley, and, by early 1997, the doctor had recommended that the employee discontinue any work in the field for the employer because of increased spasticity and regular falling episodes. The employee continued to work for the employer until June of 1997, and the parties subsequently stipulated that the employee had been permanently and totally disabled as of June 30, 1997.

On October 10, 2001, the employee filed a claim petition for permanent total disability benefits continuing from June 30, 1997, as well as for additional permanent partial disability benefits. The employer and insurer denied that the employee=s disability was due to or substantially caused by the August 20, 1980, work injury. They alleged further that the employee=s 1980 injury was solely to the lumbar spine and that wage loss benefits and medical expenses relating to the employee=s thoracic spine condition had been paid under a mistake of fact.

On November 5, 2002, the employee was examined on behalf of the employer and insurer by neurologist Dr. James Allen. In a report on that date, and in deposition testimony taken on July 15, 2003, Dr. Allen diagnosed the employee as suffering from epidural lipomatosis and congenital scoliosis. He described Aepidural lipomatosis@ as a condition of fatty tissue that acts almost like a tumor, and he attributed the employee=s myelopathy to this fatty tissue=s compression of the employee=s spinal cord. Dr. Allen opined that the employee=s work injury of August 20, 1980, was not a substantial contributing cause of the employee=s epidural lipomatosis and congenital scoliosis.

Dr. Morley=s deposition was also taken prior to trial. Dr. Morley testified that the employee had experienced compression fractures at the T8 and T9 levels that, when combined with the employee=s underlying epidural lipomatosis, had resulted in subtle damage to the employee=s spinal cord, ultimately leading to the employee=s myelopathy.

The employee=s claim petition came on for a hearing on September 15, 2003. In a findings and order issued December 17, 2003, the compensation judge found that the employee=s August 20, 1980, injury related only to the employee=s lumbar spine and that the employee did not sustain a thoracic spine injury on that date. The judge further concluded that the employee has an underlying congenital condition known as epidural lipomatosis, which causes the employee=s spinal cord to be pushed out of its normal position, resulting in cord compression of the thoracic spine, and that the employee is permanently and totally disabled as a result of that condition. He specifically found that the employee=s epidural lipomatosis was not caused or substantially aggravated by the August 20, 1980, work injury and that, therefore, the work injury was not a substantial contributing factor in his permanent total disability. The employee appeals.

On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. ' 176.421, subd. 1 (2004). Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate." Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

"[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo." Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).

At the time of the employee=s injury, August 20, 1980, the Minnesota Workers= Compensation Act was to be given a broad and liberal construction in recognition of its supposed remedial purpose. Recognizing the significance of the employee=s injury date, the compensation judge addressed the issue of liberal construction and the employee=s burden of proof in a memorandum accompanying his findings and order, where he stated the following:

Under the Workers= Compensation Law, the employee has the burden of proof to establish the compensability of his workers= compensation claims. In determining whether this burden of proof has been met, there must be sufficient factual and medical evidence presented to support the claims. Further, the common law liberal construction effective on the date of the employee=s injury goes to the liberal interpretation to be given statutory provisions, but does not change the evidentiary burden of proof which remains with the employee.

The employee first contends that the compensation judge committed an error of law by imposing an improper burden of proof upon the employee. Because the provisions of the 1980 Workers= Compensation Act were remedial in nature, and because the statute itself contained no reference to placing the burden of proof on the employee to establish entitlement to workers= compensation benefits,^[2] he argues, A[i]t is clear that the statutory framework in place at the time of [the employee=s] work-related injury did not place the burden of proof on the employee.@ We disagree.

We conclude that the compensation judge correctly stated the law regarding the employee=s burden of proof. Minn. Stat. ' 176.021, subd. 1a, requiring that all disputed issues of fact be determined by a preponderance of the evidence, simply constitutes a codification of the law that existed at the time of the employee=s injury. Regardless of whether the employee=s injury occurred before or after this statutory codification or before or after the legislature declared that workers= compensation laws are no longer remedial, the burden of proving that an employee=s injury is causally related to his employment has always rested on the claimant. See, e.g.., Funk v. A.F. Scheppmann & Sons Const. Co., 294 Minn. 483, 199 N.W.2d 791, 8 W.C.D. 235 (1972) (the burden of proof is upon the claimant to establish without speculation or conjecture that the injury or death arose out of and in the course of the employment). Because the judge correctly imposed the burden of proof on the employee, and because we find no legal support for the employee=s argument to the contrary, we affirm the compensation judge on this issue.

In concluding that the employee=s work injury is not a substantial contributing factor in the employee=s permanent total disability, the compensation judge adopted the opinions of Dr. James Allen, the employer and insurer=s expert, over those of Dr. Gerald Morley, the employee=s treating neurologist. On appeal, the employee essentially argues that the evidence he presented met any possible burden of establishing that his admitted work-related injury was a substantial contributing cause of his permanent total disability. He points out that, in order for benefits to be due, it is not necessary that the employment be the only cause of the condition for which benefits are sought; it is sufficient if the employment is only a substantial contributing factor in that condition. Swanson v. Medtronics, 443 N.W.2d 534, 42 W.C.D. 91 (Minn. 1989). Here, the employee contends that his initial injury placed in motion a chain of events that ultimately resulted in his permanent and total disability. Under the employee=s theory of the case, the underlying condition of epidural lipomatosis combined with the 1980 work injury to cause subtle damage to the employee=s spinal cord in the thoracic area. The employee asserts that his underlying congenital condition created a situation in which a work-related trauma that might not have affected someone with a normal spinal cord caused damage to the spinal cord. This damage, he asserts, did not initially result in a debilitating neurologic condition but gradually progressed to the point where the employee was unable to perform his everyday activities. We are not persuaded.

As we have often stated regarding factual disputes, the issue for this court is not whether there is substantial evidence in the record to support an appellant=s claim contrary to a decision of the compensation judge but whether there is substantial evidence supporting the decision of the judge. Land v. Washington County Sheriff=s Dep=t, slip op. (W.C.C.A. Dec. 23, 2003); Ludford v. Honeywell, Inc., slip op. (W.C.C.A. Mar. 17, 2004); Moe v. Dr. Matthew A. Gahn, slip op. (W.C.C.A. Dec. 31, 2003); see also Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) (Awhether [the appellate court] might have viewed the evidence differently is not the point, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate@). The judge=s conclusions that the employee=s 1980 injury was solely to the lumbar spine, that the employee did not sustain an injury to the thoracic spine, and that the employee=s thoracic condition was not caused, aggravated, or accelerated by the work injury is supported by Dr. Allen=s testimony as well as by the record as a whole. The causation issue in this case comes down to a choice between medical experts, and the judge chose to accept the opinion of Dr. Allen. A trier of fact=s choice between experts whose testimony conflicts is normally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).

The employee=s case is medically complex. It is apparent upon review of the judge=s memorandum that the judge carefully reviewed the very thorough deposition testimony of Drs. Morley and Allen. The judge was aware of the employee=s testimony regarding his symptoms between 1980 and 1982 and reasonably concluded that the onset of any significant neurological symptoms and findings did not occur until sometime in early 1982. Dr. Allen attached considerable significance to this history. While Dr. Morley offered a differing view of its significance, the judge was not required to accept Dr. Morley=s theory of the case. Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld. Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).

Until the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, causal relation in determining compensable injury or disease will have to remain in the province of the trier of fact. Where qualified medical witnesses differ as they do here, it ordinarily is not for us on appeal to say that one is so eminently right and the other so clearly wrong that the factfinder was obliged to accept the opinion of one and discard the opinion of the other. The determination of this question is like the determination of any other question of fact, and it must depend to a large extent upon the credibility attached by the trier of facts to the opinion and testimony of the various witnesses who are expressing their opinions.

244 Minn. 301, 304-05, 69 N.W.2d 636, 639, 18 W.C.D. 275, 278 (1955) (quoted in Ruether v. State, 445 N.W.2d 475, 478-79, 42 W.C.D. 1118, 1123-24 (Minn. 1990)).

Here, the judge=s conclusion that the employee=s deteriorating condition was caused by the natural progression of the cord compression on the thoracic spine due to the epidural lipomatosis condition, and not to the work-related injury of August 20, 1980, is supported by substantial evidence, and we affirm. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

^[1] The employee=s claims for permanent partial disability were settled to the extent of Dr. Farber=s ratings by a stipulation approved on July 21, 1986.

^[2] The employee asserts that it was not until 1981 that the statute was amended to impose a burden of proof on the employee, by a preponderance of the evidence. Minn. Stat. ' 176.021, subd. 1 (1981).